Broadcasting regulations to govern online video?

“In the hangman’s house one should not talk about the noose,” quipped Norbert Schneider, director of the North Rhine-Westphalian media authority, at a 28 January meeting in Düsseldorf.

He then proceeded to do so.

The conference, hosted by the Committee for Programme, Advertising and Media Competence of the joint directors of the German state media authorities (a tongue-twisting appellation even in German), was set up to discuss the future of broadcasting regulation in times of the Internet. Schneider was adamant that broadcasting regulation applies regardless of the technology used to transmit audiovisual content to an audience. In this area, he said, the German constitution clearly trumps the commerce-driven and rather vague European Audiovisual Services Directive. But what constitutes broadcasting?

German and European laws traditionally distinguish between broadcasting (as in radio and television) and other audiovisual services (such as websites or video-on-demand). Broadcasting is defined by its technological capability to simultaneously reach a mass audience with a predetermined linear audiovisual programme. These qualities provide it with the potential to strongly influence public opinion, and hence broadcasting is subject to rather strong regulations which aim to preserve pluralism and protect consumers from undue commercial manipulation. As a consequence, broadcasters need a license and are required to comply with rules concerning programme content and advertising. Many see this as an encumbrance of business interests.

Characteristic of audiovisual services, on the other hand, is individual communication. The user personally initiates contact with a website, plays a specific video, or buys a product online. This is considered a mere commercial activity, not one potentially interfering with the public sphere, and thus nobody operating such a service needs a license or faces specific restrictions other than those applying to any other business.

In Germany, broadcasting is also required to observe the notion of “internal pluralism”: each television and radio station (with the exception of special-interest channels) should reflect the entire spectrum of opinion. For any other type of media, though, German law surmises that there will be “external pluralism”: the diversity of voices and political tendencies of newspapers, magazines or websites is supposed to guarantee a variety of opinions even if individual media outlets report in a skewed or one-sided fashion.

Of course, these laws were conceived in pre-digital times, when only a handful of organisations could get the opportunity to broadcast. This situation has changed over the past 20 years. Digital technology allows for the transmission of multiple times the number of TV and radio channels through cable, satellite and the airwaves. Broadband Internet now provides virtually unlimited capacity for extra content.

However, lawmakers and regulators are not going to relinquish control of the media easily. While everybody has grown accustomed to the licensing of television and radio, the same is not true for the online realm. Individuals, organisations and businesses are lining up to explore the opportunities opened up by the Internet. But beware – offering online video can quite easily put you in violation of media laws or may require you to apply for a license.

As of now, German regulators stick to a rather arbitrary – though informal – definition of what qualifies an online service as broadcasting: audiovisual content must be presented in a linear sequence, and it must have the potential to reach 500 or more people simultaneously. Text or still pictures can by definition never be broadcasting. As many participants in the Düsseldorf meeting were ready to concede, this is somewhat absurd. If you offer a linear programme, but tune your servers to a maximum of 499 parallel streams, you can do whatever you want without any media authority breathing down your neck. The same applies if you split up your programme into individual segments which are played only on individual request of users, because then regulators do not care whether your message reaches 500 or 5 million people. Just to put these figures into some perspective – the most popular YouTube video of all time, for instance, has so far been viewed a staggering 73 million times. And why are written materials and pictures considered more harmless than videos?

If the regulators stick to this definition, it probably simply means that nobody will offer linear programming on the Internet, period. Which also means that the regulators will soon be out of their jobs.

On the other hand, pluralism and consumer protection are values that do not become obsolete with conventional broadcasting. University of Rostock law professor Hubertus Gersdorf therefore proposed to define a new benchmark for online media regulation, one which does away with technological sophisms and considers market share or audience reach as relevant parameters for potential influence on public opinion. He pointed out that the current definition would not stand up to close legal scrutiny anyway. Transmissions of live events such as football matches via the Internet, for example, would by their nature be linear, but watching them could be initiated by individual users; so would that constitute broadcasting or not? As Gersdorf put it, we are on the way from an elitist to an egalitarian freedom of broadcasting (hence, of course, the name YouTube), and media laws should reflect that.

Media business consultant Klaus Goldhammer further illustrated the issue with an example. He reported that one of Germany’s most important football clubs, FC Bayern München, has an agreement with YouTube, allowing the club to directly delete videos infringing on Bayern München’s rights without first checking back with a YouTube official. While this particular club is not all too suspicious of planning to influence public opinion in areas other than soccer (although Bavarian prime ministers have known to be on its board), it theoretically could probably delete any other YouTube video as well. And there is no telling who else has a similar contract with YouTube or Google or other search and content aggregator sites.

So a certain amount of Internet video regulation safeguarding freedom of expression, information and opinion might still be in order, after all. Business considerations or PR activities can not be allowed to take precedence over pluralism, and neither can biased political interests. But the requisite laws and regulations must catch up with the changed reality, and fast.

Eric Karstens

Eric Karstens is a consultant, analyst and author, focusing on media management, content and project development, strategy and media policy. Aside from working for German and international private and public-sector media companies, he is affiliated with the European Journalism Centre (EJC). Inspired by his many years as head of scheduling at the TV channel VOX, he published – among others – the standard reference Practical Television Handbook. Currently, the bulk of his work assignments is related to European Union affairs and to support and governance aspects of the public sphere.